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Residential Tenancy Law In British Columbia

Introduction

Residential tenancy law, in Canada, is generally legislated by the provinces. The standard scheme involves a basic law which outlines tenant and landlord duties and rights and then sets up an administrative tribunal system to deal with disputes. British Columbia is no exception.

The BC Residential Tenancy Act is available online but, as with all statutes, beware of simply consulting the latest published edition of the Act. It may well have been amended several times since the last revised copy was published.

The starting point for the RTA is to know that it only applies to tenancy agreements which does not include offers to purchase where rent money goes toward the final purchase price (where there is an "equity participation"), commercial leases, floating homes, house-sharing agreements, hotel guests (unless they are seasonal tenants; see "hotel tenants discussed below), where the building is owned by a non-profit co-op or society (unless an owner rents his or her unit and then only as between the owner and tenant), summer cottages or winter chalets.

An issue of some controversy involves the application of the RTA over tenancy agreements in Indian reserves. One solution proposed is that the RTA does not apply unless an agreement between landlord and tenants refers to it.

The Charter of Rights and Freedoms does not apply in disputes between tenants and landlords since it is a private dispute.

But the BC Human Rights Code prohibits discrimination by landlords "because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons, or of any other person or class of persons" with some exceptions (e.g. if the space is to be occupied by another person who is to share, with the person making the representation, the use of any sleeping, bathroom or cooking facilities in the space).

The RTA says it does not apply to "living accommodation":

that is rented by a non-profit housing cooperative to a member of the cooperative,

owned or operated by an educational institution and provided by that institution to its students or employees,

in which the tenant shares bathroom or kitchen facilities with the owner,

included with premises that are primarily occupied for business purposes and are rented under a single agreement,

occupied as vacation or travel accommodation,

provided for emergency shelter or transitional housing,

in a community or continuing care facility or a hospital including a psychiatric facility

in a housing based health facility that provides hospitality support services and personal health care, or rehabilitative or therapeutic treatment or services

in a correctional institution,

tenancy agreement that has a term longer than 20 years, or

mobile home tenancy agreements.

The RTA also excludes "an occupation of land or premises that, at common law, would be considered a license to occupy land...".

A foray into the common law reveals a series of complex criteria to distinguish between a license and a lease. Most importantly, a lease means exclusive possession.

The court will look at all the evidence and decide in each case. Some important things are: does the occupier have exclusive possession?

"Was it intended that the occupier should have a stake in the room or did he have only permission for himself personally to occupy the room, whether under contract or not, in which case he is a licensee."

It is also important to note that the RTA makes an explicit exception to the Infants Act and binds a minor (someone under the age of 19) to any tenancy agreements signed by them.

Protections

The most important fact about RTA in BC is to know that:

"Landlords and tenants may not avoid or contract out of this Act or the regulations. Any attempt to avoid or contract out of this Act or the regulations is of no effect."

The Act applies to all tenancy agreements as if there was a written agreement existing between the landlord and the tenant,. In other words, even if you do not have a written lease, you are protected as follows (summary only; for full extent of rights and duties see the RTA):

The agreement must not say that the entire rental payments becomes fully payable and due if there is some omission by the tenant;

A lease with a fixed term continues as a month-to-month tenancy if the tenant continues to occupy the premises after the lease expired unless both parties have agreed, in writing, that the lease will not automatically be renewed under the RTA.

The landlord must ensure that the premises "complies with health, safety and housing standards required by law, and having regard to the age, character and location of the residential property, would make it reasonably suitable for occupation by a reasonable tenant who would be willing to rent it." This requirement applies even if, at the time of renting, the tenant was aware of some legal deficiency.

Conversely, the tenant must maintain "ordinary health, cleanliness and sanitary standards" and repair damages caused by their negligence or that of their guests. This does not mean that a tenant is responsible for "reasonable wear and tear".

Once rented, the landlord is expected to stay away from the rented premises except for emergencies, periodic inspection, where the tenant has abandoned the premises or where the tenant consents. In any case, the landlord is allowed to enter the premises upon 72 hours written notice "for a reasonable purpose."

Neither the landlord nor the tenant is allowed to change the locks without a court order.

The tenant is allowed to sublet with the consent of the landlord, such consent must not be "arbitrarily or unreasonably" withheld if the tenancy is for a fixed term of 6 months or more and such consent cannot be "sold" to the tenant.

In BC, all landlords and tenants are deemed to have agreed to submit their disputes to an dispute resolution officer under the RTA (see under "Disputes" below).

If a lease was written and signed, the landlord must give the tenant a copy.

Damage deposits or security deposits are legal, to cover any damage tenants do to the suite above normal wear and tear, any unpaid rent or bills and any costs if the tenant(s) move out without giving proper notice. If there are no problems, the deposit must be returned with interest. This deposit must be requested when the lease is signed, not later. Nor can it be for more than half of the first months rent. Separate deposits for keys, garage door openers and other items are not allowed. Tenants must pay the deposit within 30 days of the start date of the tenancy agreement. If they don't, they can be evicted with 1 month notice.

The landlord must take a measure of care with abandoned personal property. The Residential Tenancy Regulation provides greater detail with regards to the duties of the landlord and property left behind by an absconded tenant.

Other Issues

A tenancy agreement may be ended "for cause" including, but not limited to:

The conduct of the tenant, or of a person permitted in or on the residential property or residential premises by the tenant, has resulted in the enjoyment of other occupants in the residential property being unreasonably disturbed;

The tenant, or a person permitted in or on the residential property or residential premises by the tenant, has caused extraordinary damages to the residential premises or the residential property;

Occupancy by the tenant has resulted in the residential property or residential premises being damaged to an extent that exceeds reasonable wear and tear, and the tenant has failed within a reasonable time after the damage occurred to take the necessary steps to repair the damage;

The tenant has failed to give, within the required timeframes after the date he or she entered into a tenancy agreement, the security deposit required under the tenancy agreement;

The tenant has knowingly misrepresented the residential property or residential premises to a prospective tenant or purchaser of the residential property or residential premises; and

The safety or other lawful right or interest of the landlord or other occupant in the residential property has been seriously impaired by an act or omission of the tenant or of a person permitted in or on the residential property or residential premises by the tenant.

The landlord also has the right to repossess the premises if he or she intends "in good faith" to occupy it themselves, or for the use of a child or parent or to demolish or convert it into a condo or to conduct major repairs which require vacant possession. Where renovation or conversion requires permits, these permits must be obtained before the notice to end the tenancy is delivered to the tenant. In some cases, the landlord may be required to pay the tenants moving expenses and additional compensation.

Disputes

Disputes under the RTA are sent to a dispute resolution officer (DRO); a form of face-to-face administrative tribunal with flexible rules of procedure. The cost of this is presently set at $50 to $100 and may be free for indigent applicants.

The DRO has the right to refuse to hear a dispute which he or she considers to be "frivolous, vexatious, trivial or has not been initiated in good faith."

The oddest aspect of the arbitrators powers is that they are "not bound by legal precedent." This means that the thoughtful decisions rendered before them have no bearing on the case at hand and jurisprudential development of residential tenancy law in BC is theoretically stopped dead in the water. The reasoning behind this statement in the RTA is presumably to avoid hearings getting bogged down in legal arguments and to retain the focus on the facts at hand.

On the other hand, the RTA says that arbitrators must "make his or her decision on the merits of the matter."

The combination of these two principles has caused a great deal of confusion. One arbitrator has told me that they follow Supreme Court of BC decisions but do not feel bound by other judicial decisions, from other courts or jurisdictions. One Supreme Court justice surmised that the two principles, when read together, as they must, mean: "I suppose (that the arbitrator) is expected to exercise common sense and a sense of fairness, and when those fail to lead to a solution, he is to be guided not by law but by his sense of the social policy of the legislation."

It is respectfully submitted that this cannot be fully right. Surely, an arbitrator is bound by "law", by the provisions of the RTA. The arbitrator is not bound by legal precedent (i.e. case law) but he or she is bound by statute law (i.e. the RTA etc.)

Decisions of the arbitrator can be appealed to a Review if, generally:

A party was unable to attend the original hearing due to circumstances that could not be anticipated and that were beyond his or her control or was not given an adequate opportunity to be heard at the original hearing or there is new and relevant evidence that was not available at the time of the original hearing; or

The arbitrator who held the original hearing was biased or appeared to be biased, exceeded his or her powers, or the arbitrator's decision or order was obtained by fraud.

This general legal information is provided free of charge, for the time being, by Lloyd Duhaime (practising law with Duhaime Law), Barrister & Solicitor, situated in Victoria, British Columbia, as a public service. This is not legal advice but, rather, general legal information. I have truncated some of the case summaries and, in any event, the law can change instantly with new cases being brought down or new laws being ratified. Consequently, this information is shared with the public on the condition that to it is attached no warranty whatsoever with regards to its accuracy and any use in actual legal situations in done entirely at the sole risk of the user.

Lloyd Duhaime
Victoria, BC
November 6, 2007

I highly recommend the web site of the Government of British Columbia's Residential Tenancy Office which should be up-to-date. Anything therein which conflicts with the above should be taken as prevailing as it will reflect ongoing changes to the Residential Tenancy Act.

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Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.